Devlin v. State

Supreme Court of Montana

January 14, 2014

CHUCK DEVLIN, Petitioner,v.STATE OF MONTANA, Respondent.

ORDER

Self-represented petitioner Chuck Devlin has filed a petition for an out-of-time appeal in which he asserts that he has discovered new evidence that was not available at the time of his trial or appeal which will establish his actual innocence. He references Cause No. OP 13-0773, in which he unsuccessfully sought a writ of habeas corpus in this Court. Or. Denying Writ of Habeas Corpus, Devlin v. Kirkegard, No. OP 13-0773 (Mont. Dec. 3, 2013). Devlin claims that denying the out-of-time appeal will subject him to a clear miscarriage of justice.

As we noted in OP 13-0773, Devlin was convicted in a jury trial of kidnapping and obstructing a peace officer, for which the Twentieth Judicial District Court sentenced him to 50 years for kidnapping, with no parole eligibility for 25 years, and six months for obstructing a peace officer. Devlin appealed arguing that the denial of his motions for a change of venue and to dismiss for insufficient evidence was error. We affirmed Devlin's conviction, but remanded to the District Court for the limited purpose of correcting the written judgment to correctly indicate that obstructing a peace officer is a misdemeanor, not a felony. State v. Devlin, 2009 MT 55N.

Devlin was also convicted of bail jumping for which he was sentenced as a persistent felony offender to 20 years, with 15 suspended, to be served concurrently with the above sentences.

Devlin attached to his petition copies of judgments and a summation of a case raising the issue of a court's failure to allow a defendant to be present at an omnibus hearing. The case, State v. Clary, 2012 MT 26, 364 Mont. 53, 270 P.3d 88, does not support Devlin's contention that a defendant is required to be present at the omnibus hearing.

This Court grants out-of-time appeals only "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice" M. R. App. P. 4(6). There is no new evidence presented in this petition and no extraordinary circumstances have been established.

Devlin does not claim or demonstrate that he was not present at his omnibus hearing. Assuming Devlin had a legitimate issue arising from failure to allow his presence at the omnibus hearing, he could have raised this issue on appeal. "[I]t is well-established that we will not address an argument or issue where the appellant failed to contemporaneously object or otherwise raise the issue in district court." State v. Todd, 2005 MT 108, ¶ 19. 327 Mont. 65, 111 P.3d 677; §§ 46-20-104(2), -701(2), MCA.

The petition is plainly without merit. Consequently, there is no basis upon which to conclude denial of the petition will subject Devlin to a gross miscarriage of justice.

IT IS ORDERED that the Petition for an Out-of-time Appeal is DENIED.

The Clerk is directed to provide a copy hereof to counsel of record ...

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